Exhibit 11(b)(1)
LOAN AGREEMENT
BETWEEN
XXXXXX CHEMICAL, INC.
AS BORROWER
AND
XXXXXX, INC.
AS LENDER
JULY 1, 1996
TABLE OF CONTENTS
Page
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Section 1. Definition and Accounting Terms................................. 1
1.1 Certain Defined Terms.............................................. 1
1.2 Computation of Time Periods........................................ 10
1.3 Accounting Terms................................................... 10
Section 2. Revolving Credit Loans.......................................... 10
2.1 Revolving Credit Commitment........................................ 10
2.2 Revolving Credit Loans............................................. 10
2.3 Revolving Credit Note.............................................. 10
2.4 Commitment Fee..................................................... 12
2.5 Additional Amounts................................................. 12
Section 3. Term Loans...................................................... 13
3.1 Term Loans......................................................... 13
3.2 Term Note.......................................................... 13
3.3 Prepayments of Term Notes.......................................... 13
3.4 Additional Amounts................................................. 14
Section 4. Conditions of Borrowing......................................... 14
4.1 Conditions Precedent to the Initial Loans.......................... 14
4.2 Conditions Precedent to Each Loan.................................. 15
Section 5. Warranties...................................................... 15
5.1 Representations and Warranties of the Borrower..................... 15
Section 6. Covenants of the Borrower....................................... 16
6.1 Affirmative Covenants.............................................. 16
6.2 Negative Covenants................................................. 18
6.3 Reporting Requirements............................................. 22
Section 7. Events of Default............................................... 25
7.1 Events of Default.................................................. 25
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Page
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Section 8. Miscellaneous.................................................. 28
8.1 Amendments, Etc................................................... 28
8.2 Notices, Etc...................................................... 28
8.3 No Waiver; Remedies............................................... 28
8.4 Indemnification................................................... 29
8.5 Governing Law..................................................... 30
8.6 Execution in Counterparts......................................... 30
8.7 Waiver of Jury Trial.............................................. 30
8.8 Amendments to the Credit Agreement................................ 30
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LOAN AGREEMENT
This Loan Agreement dated as of July 1, 1996 ("Agreement") is made in
Columbus, Ohio by and between Xxxxxx Chemical, Inc., a Delaware corporation (the
"Borrower"), and Xxxxxx, Inc., a New Jersey corporation (the "Lender"), who
agree as hereinafter set forth.
BACKGROUND
The Borrower is a recently formed Subsidiary of the Lender. In order
to provide funding for anticipated capital expenditures and to provide funding
for Borrower's long-term and short-term working capital requirements, Borrower
has requested the Lender to lend to it: (i) certain amounts on a revolving
credit basis (individually a "Revolving Credit Loan" and collectively the
"Revolving Credit Loans") and (ii) certain amounts on a term loan basis
(individually a "Term Loan" and collectively the "Term Loans"). The Lender is
willing to make the Revolving Credit Loans and the Term Loans upon the terms and
conditions herein.
SECTION 1. DEFINITION AND ACCOUNTING TERMS
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ADDITIONAL TERM LOANS" means Term Loans made after the date hereof,
if any, in such principal amounts as determined by Lender.
"AFFILIATE" means, as to any Person (other than a Subsidiary), any
other Person that, directly or indirectly, controls, is controlled by or is
under common control with such Person or is a director or officer of such
Person. For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote ten
percent (10%) or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by control or otherwise.
"APPLICABLE PERCENTAGE" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating of Lender in effect on
such date as set forth below:
============================== =====================
PUBLIC DEBT RATING APPLICABLE
S&P/XXXXX'X PERCENTAGE
------------------------------ ---------------------
Level 1
-------
BBB or Baa2 or above .20%
------------------------------ ---------------------
Level 2
-------
below BBB or Baa2 but at least
BBB- or Baa3 .25%
------------------------------ ---------------------
Level 3
-------
below BBB- or Baa3 but at
least BB or Ba2 .375%
------------------------------ ---------------------
Level 4
-------
below BB and Ba2 .50%
============================== =====================
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S SUBSIDIARY(IES)" means the Subsidiary(ies) of the parent
(i.e., holding) company of Borrower.
"BORROWING DATE" has the meaning specified in Section 2.3 (e).
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in New York City.
"BUSINESS YEAR" means a year of three hundred sixty (360) days.
"CAPITAL EXPENDITURES" means for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
in all events all amounts expended or capitalized under Capital Leases but
excluding any amount representing capitalized interest) by the Borrower,
its parent company and its Subsidiaries during such period that, in
conformity with GAAP, are or are required to be included as additions
during such period to property, plant or equipment reflected in the
Consolidated balance sheet of the Borrower, its parent company and its
Subsidiaries; provided that Capital Expenditures shall in any event exclude
(a) expenditures made in connection with the replacement, substitution or
restoration of assets (i) to the extent financed from insurance proceeds
paid on account of the loss of or damage to the assets being replaced or
restored
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or (ii) with awards of compensation arising from the taking by eminent
domain or condemnation of the assets being replaced, (b) the purchase price
of equipment that is purchased simultaneously with the trade-in of existing
equipment to the extent that the gross amount of such purchase price is
reduced by the credit granted by the seller of such equipment for the
equipment being traded in at such time, (c) the purchase of plant, property
and equipment made within two hundred seventy (270) days of the sale of a
similar asset, and (d) any acquisition of stock or assets constituting a
business unit which is approved by Lender pursuant to Section 5.02 (e) of
the Credit Agreement.
"CAPITAL PREFERRED STOCK" means the junior and senior capital
preferred stock issued by the Borrower or its parent company.
"CAPITALIZED LEASES" means all obligations of a Person as lessee under
leases that have been, in accordance with GAAP, recorded as capital leases.
"COMMITMENT" means the maximum aggregate amount which Lender is
obligated to lend hereunder pursuant to its Revolving Credit Loans.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED NET DEBT" means for any fiscal period of Borrower, the
Total Debt of the Borrower, its parent company and its Subsidiaries on a
Consolidated basis net of all cash on deposit (or cash equivalents) and
intercompany loans made by the Borrower, its parent company and its
Subsidiaries to other Affiliates of Lender.
"CONSOLIDATED NET INTEREST EXPENSE" means for any fiscal period of the
Borrower, the interest on all Debt of the Borrower, its parent company and
its Subsidiaries on a Consolidated basis, net of interest income, in
accordance with GAAP (excluding, in any event, interest expense, if any, on
overdue tax assessments and amortization of financing fees and debt
discount).
"CREDIT AGREEMENT" means that Credit Agreement dated December 15, 1994
as amended and re-stated on May 8, 1996 among Xxxxxx, Inc., Xxxxxx Foods
Holdings, Inc., Wise Foods Holdings, Inc., the Banks and certain other
lender parties thereto, BT Securities Corporation, Chase Securities, Inc.,
Citicorp Securities, Inc. and Credit Suisse as arrangers and Citibank N.A.
as Administrative Agent for such other Lenders.
"DEBT" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services (other than trade
payables and accrued expenses arising in the ordinary course of business),
(c) all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of
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such property), (e) all obligations of such Person as lessee under leases
that have been, in accordance with GAAP, recorded as capital leases
("Capitalized Leases") and (f) all Debt referred to in clauses (a) through
(e) above, secured by any Lien on property owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt, but only to the extent that, in accordance with GAAP, such Debt would
be reflected on the financial statements of such Person.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"EBITDA" means, for any period, net income (or net loss) of the
Borrower, its parent company and its Subsidiaries plus the sum, without
duplication, of (a) Consolidated Net Interest Expense, (b) income tax
expense, (c) depreciation expense, (d) amortization expense, (e)
extraordinary or unusual losses included in net income (net of taxes to the
extent not already deducted in determining such losses and net of
extraordinary or unusual gains included in net income) including, without
limitation, cumulative effects of accounting changes, discounted
operations, restructuring charges and non-cash charges, (f) amortization of
any deferred financing fees and debt discount, (g) other non-cash charges,
(h) gains or losses on asset sales (including sales of accounts
receivable), (i) severance and similar expenses, and (j) dividends accrued
on securities other than common stock, in each case determined in
accordance with GAAP for such period.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any
way to any Environmental Law (hereafter "Claims") or any permit issued
under any such law, including without limitation (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from
alleged injury or threat or injury to health, safety or the environment.
"ENVIRONMENTAL LAW" means any federal, state, provincial or local
statute, law, rule, regulation, ordinance, code, policy or rule of common
law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial
or administrative order, consent, decree or judgment, relating to the
environment, health, safety or Hazardous Materials.
"ERISA" means the Employment Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or any Subsidiary of the Borrower
would be deemed to be a
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"single employer" within the meaning of Section 414(b), (c), (m) or (o) of
the Internal Revenue Code.
"EVENTS OF DEFAULT" has the meaning specified in Section 7.1.
"EXISTING INDEBTEDNESS" means Indebtedness of the Borrower, its parent
company and its Subsidiaries outstanding on the date hereof.
"EURODOLLAR RATE" means, an interest rate per annum equal to the rate
per annum obtained by the sum of LENDER'S cost of funds for LIBOR-based
borrowings PLUS twenty-five (25) basis points.
"EURODOLLAR RATE ADVANCE" means an advance that bears interest at the
Eurodollar Rate.
"FAIR MARKET VALUE" means, (a) with respect to any asset sold to any
Person that is an Affiliate of the Borrower or the Affiliate Guarantor for
consideration of Ten Million and 00/100 Dollars ($10,000,000.00) or more,
the appraised fair market value of such asset as determined by a nationally
recognized investment banker selected by the Borrower and (b) with respect
to any other asset, the value that the Board of Directors of the Person
owning such asset or the stock or assets determines to be the fair market
value of such asset; provided, in each case that the consideration so
determined to equal such fair market value may include notes or other
evidence of indebtedness unless the Borrower shall have obtained an
appraisal of the fair market value of such asset from a nationally
recognized investment banker selected by the Borrower.
"GAAP" has the meaning specified in Section 1.3.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment
that contained electric fluid containing levels of polychlorinated
biphenyls and radon gas, (b) any chemicals, materials or substances defined
as or included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "restricted
hazardous wastes," "toxic substances," "toxic pollutants," "contaminants"
or "pollutants," or words of similar import, under any applicable
Environmental Law and (c) any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or options contracts and other similar agreements including
specifically foreign exchange agreements, but excluding commodity
agreements.
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"INDEBTEDNESS" of any Person means, without duplication, (a) all Debt
of such Person, (b) all obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities, (c) all
obligations of such Person in respect of Hedge Agreements and (d) all
Indebtedness of others referred to in clauses (a) through (c) above
guaranteed directly or indirectly in any manner by such Person, or in
effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Indebtedness or to advance or supply
funds for the payment or purchase of such Indebtedness, (ii) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment
of such Indebtedness or to assure the holder of such Indebtedness against
loss, (iii) to supply funds to or in any manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss; provided, however, that
amounts so guaranteed shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of
any such guarantee obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which
such guarantee obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in
good faith.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.4 (a).
"INITIAL TERM LOAN" has the meaning specified in Section 3.1.
"INTEREST PAYMENT DATE" means the first business day of each April,
July, October and January.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"LENDER" has the meaning specified in the recital of parties to this
Agreement.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor.
"LOAN DOCUMENTS" means this Agreement, the Notes and the other
certificates and documents delivered by Borrower to Lender hereunder.
"MATERIAL ADVERSE CHANGE" means any change in the business, condition
(financial or otherwise), operations, performance or properties of the
Borrower and its parent company, its parent company and its Subsidiaries
taken as a whole that would materially adversely affect the ability of the
Borrower to perform its obligations under this Agreement and the other Loan
Documents (taken as a whole).
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"MATERIAL ADVERSE EFFECT" means a circumstance or condition affecting
the business, condition (financial or otherwise), operations, performance
or properties of the Borrower, its parent company and its Subsidiaries
taken as a whole which would materially adversely affect (a) the ability of
the Borrower to perform its obligations under this Agreement, the Notes and
the other Loan Documents (taken as a whole) or (b) the rights and remedies
of the Lender under this Agreement and the other Loan Documents (taken as a
whole).
"MATERIAL SUBSIDIARY" means each Subsidiary of the Borrower AND/OR its
parent company now existing or hereafter acquired or formed by the Borrower
AND/OR its parent company which (x) for the most recent fiscal year of the
Borrower accounted for more than three percent (3%) of the Consolidated
revenues of the Lender and Borrower AND/OR ITS PARENT COMPANY or (y) as at
the end of such fiscal year, was the owner of more than four percent (4%)
of the Consolidated assets of the Lender and the Borrower in each case as
shown on the Consolidated financial statements of the Lender and the
Borrower AND/OR its parent company for such fiscal year.
"Note(s)" means a Revolving Credit Note and/or a Term Note(s).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereof.
"PERMITTED LIENS" means (a) Liens for taxes, assessments or
governmental charges or claims not yet due or which are being contested in
good faith and by appropriate proceedings for which appropriate reserves
have been established in accordance with GAAP; (b) Liens in respect of
property or assets of the Borrower, ITS PARENT COMPANY or any of its
Subsidiaries imposed by law which are incurred in the ordinary course of
business, such as carriers', warehousemen's and mechanics' Liens and other
similar Liens arising in the ordinary course of business, and which do not
individually or in the aggregate have a Material Adverse Effect; (c) Liens
on assets of the Borrower, its parent company or any of its Subsidiaries
existing on the date hereof securing Indebtedness in an aggregate principal
amount not to exceed One Million and 00/100 Dollars ($1,000,000.00) or
arising pursuant to any of the Loan Documents; (d) Liens arising from
judgments or decrees in circumstances not constituting an Event of Default
under Section 7.1 (g); (e) Liens incurred or deposits made in connection
with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business; (f) leases or subleases
granted to others not interfering in any material respect with the business
of the Borrower , its parent company and its Subsidiaries taken as a whole;
(g) ground leases in respect of real property on which facilities owned or
leased by the Borrower, its parent company or any of its Subsidiaries are
located; (h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Borrower, its
parent company and its Subsidiaries taken as a
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whole; (i) any interest or title of a lessor or secured by a lessor's
interest under any lease permitted by this Agreement; (j) Liens in favor of
customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; (k)
Liens on goods the purchase price of which is financed by a documentary
letter of credit issued for the account of the Borrower, its parent company
or any of its Subsidiaries where such Lien secures the obligations of the
Borrower, ITS PARENT COMPANY or such Subsidiaries in respect of such letter
of credit to the extent permitted under Section 6.2 (b); (l) Liens arising
pursuant to purchase money mortgages securing Indebtedness financing the
purchase price of assets acquired after the date hereof; provided that any
such Liens attach only to the assets so purchased to the extent permitted
under Section 6.2 (b); (m) Liens on assets permitted to be acquired
hereunder; provided that such Liens were existing at the time of such
acquisition and were not created in anticipation thereof; and (n) Liens
granted in connection with any foreign contract option, futures contract or
similar agreement designed to protect the Borrower, its parent company or
any of its Subsidiaries from fluctuations in the price of commodities;
provided that such Liens attach solely to the commodities which are the
subject of such options, contracts or agreements.
"PERSON" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means any multi-employer or single-employer plan as defined in
Section 4001 of ERISA and which is covered by Title IV of ERISA which is
maintained or contributed to (or to which there is an obligation to
contribute), by the Borrower, its parent company or any of its Subsidiaries
or any ERISA Affiliate.
"PREFERRED DIVIDENDS" means for any fiscal period of the Borrower the
dividends required to be paid on Preferred Stock of the Borrower, its
parent company and its Subsidiaries on a Consolidated basis.
"PREFERRED STOCK" means, with respect to any corporation, capital
stock issued by such corporation that is entitled to a preference or
priority over any other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by dividend or upon
liquidation.
"PRINCIPAL PROPERTY" means the manufacturing or processing plants or
warehouses owned or leased by the Borrower, the parent company or any
Restricted Subsidiary as of the date hereof, as listed on Exhibit C
attached hereto and incorporated herein by reference.
"REAL PROPERTY" of any Person means all of the right, title and
interest of such Person in and to land, improvements and fixtures,
including leaseholds.
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"RESTRICTED SUBSIDIARY" means any Subsidiary of the Borrower (and/or
the Borrower's parent company) which owns, operates or leases one or more
Principal Properties and shall not include any other Subsidiary.
"REVOLVING CREDIT LOAN(S)" has the meaning specified in the recital of
the parties to this Agreement.
"REVOLVING CREDIT NOTE" has the meaning specified in Section 2.3.
"SENIOR PREFERRED STOCK" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a preference
or priority over any other Preferred Stock issued by such corporation upon
any distribution of such corporation's assets.
"SENIOR PREFERRED DIVIDENDS" means for any fiscal period of the
Borrower, the dividends required to be paid on Senior Preferred Stock
permitted by Section 5.02(f)(ii) of the Credit Agreement.
"SUBSIDIARY" of any Person shall mean and include (i) any corporation
more than fifty percent (50%) of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and (ii)
any partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries has more than a fifty
percent (50%) equity interest at the time.
"TERM LOAN(S)" has the meaning specified in the recital of the parties
to this Agreement.
"TERM NOTE(S)" has the meaning specified in Section 3.2.
"THIRD PARTY INDEBTEDNESS" means Indebtedness excluding inter-company
debt.
"TOTAL DEBT" means, without duplication, the aggregate of: (a) Debt
of the Borrower, its parent company and its Subsidiaries described in
clauses (a) through (e) of the definition of "Debt" herein, and (b)
outstanding capital of any receivables interests net of the lesser of the
(1) beginning cash balances existing on January 1, 1996, or (2) average
ending cash balances for each of the four (4) consecutive 1996 fiscal
quarters.
"UNFUNDED CURRENT LIABILITY" of any Plan means the amount, if any, by
which the present value of the accrued benefits under the Plan as of the
close of its most recent plan year, based upon the actuarial assumptions
which would be required to be used by the Plan's actuary in connection with
the determination of the Plan's accrued benefits
9
pursuant to its termination, exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the
Internal Revenue Code.
"UNUSED COMMITMENT" has the meaning specified in Section 2.4.
"VARIABLE RATE" shall mean a fluctuating per annum rate of interest
equal to the rate of interest announced publicly by Citibank in New York,
New York from time to time as Citibank's base rate.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right so to vote has been suspended by the
happening of such a contingency (but excluding in any event convertible or
exchangeable Preferred Stock prior to conversion or exchange, as the case
may be).
1.2 COMPUTATION OF TIME PERIODS. In this Agreement in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding."
1.3 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles ("GAAP").
SECTION 2. REVOLVING CREDIT LOANS
2.1 REVOLVING CREDIT COMMITMENT. Upon the terms and subject to the
conditions of this Agreement, the Lender agrees to make Revolving Credit Loans
to the Borrower as provided for at Section 2.2. The maximum aggregate amount
which Lender is obligated to lend hereunder pursuant to its Revolving Credit
Loans (the "Commitment") is Forty Million and 00/100 Dollars ($40,000,000.00).
2.2 REVOLVING CREDIT LOANS. The Lender agrees to lend to the Borrower
an amount up to the Commitment as Revolving Credit Loans provided that no
borrowings can be made if amounts may be borrowed under the Term Note except as
provided in Section 2.3(g) herein. Such credit shall be available to the
Borrower, subject to the limitations herein, in whole or part and from time to
time until December 31, 1997. Any Revolving Credit Loan may be repaid in whole
or in part and re-borrowed until December 31, 1997 or the earlier cancellation
of the Commitment subject to the limitations herein. Each borrowing under the
Revolving Credit Loans shall be as provided for under Section 2.3 and shall be
in increments of Fifty Thousand and 00/100 Dollars ($50,000.00) or in integral
multiples thereof.
2.3 REVOLVING CREDIT NOTE. The obligation of the Borrower to repay
the unpaid principal amount of each Revolving Credit Loan shall be evidenced by
a properly executed Revolving Credit Note (the "Revolving Credit Note") in the
form of Exhibit A attached hereto
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and incorporated herein by this reference. The Revolving Credit Note shall have
the following terms:
(a) AMOUNT. The Revolving Credit Note shall be in the amount of the
Commitment and shall be payable to the order of the Lender. Each Revolving
Credit Loan made by the Lender and each payment made on account of
principal on each Revolving Credit Note shall be recorded and endorsed by
the Lender on the Schedule attached to the Revolving Credit Note; provided,
however, that the failure of the Lender or any holder to make such notation
shall not limit or otherwise affect the obligation of the Borrower
thereunder or under this Agreement; and shall be conclusively deemed to be
correct in the absence of manifest error.
(b) TERM. The Revolving Credit Note shall be dated as of January 1,
1996 and shall be due and payable on December 31, 1997.
(c) INTEREST RATE. From its date the Revolving Credit Note shall bear
interest (computed on the basis of the actual number of days elapsed over a
Business Year) on the unpaid principal balance thereunder at a fluctuating
rate per annum equal to the Variable Rate. Any change in the interest rate
on the Revolving Credit Loans due to a change in the Variable Rate shall
take effect on the date of change in the Variable Rate.
(d) INTEREST TENDER DATES. Interest on the Revolving Credit Note
shall be payable in arrears daily commencing January 1, 1996.
(e) LOAN DISBURSEMENTS. Revolving Credit Loan disbursements shall be
made to the Borrower pursuant to Borrower's request therefor which shall be
written, telegraphic or oral and delivered to the Lender no later than
10:45 a.m. Columbus time on the Business Day on which such Loan is to be
made (the "Borrowing Date"). Any such requests received after 10:45 a.m.
Columbus time shall not obligate Lender to make such Revolving Credit Loan
disbursements on the Borrowing Date and shall bear a penalty charge of one
percent (1%) of the amount requested to be disbursed, if the disbursement
is made on the same day as the request is made.
(f) OPTIONAL REPAYMENTS. The Revolving Credit Note may be repaid, at
the Borrowers' option, in whole or in part at any time or from time to
time, without premium or penalty, in minimum principal amounts of Fifty
Thousand and 00/100 Dollars ($50,000.00) or such additional amounts as
required to pay the outstanding balance in full, by giving written,
telegraphic or oral notice to the Lender not later than 10:45 a.m. Columbus
time on the Business Day on which repayment is to be made. When such
notice of repayment has been given the Lender, the applicable principal
amounts of the Revolving Credit Note shall become due and payable on the
designated repayment date. Interest on the principal of the Revolving
Credit Note repaid, accrued to such repayment date, shall be due and
payable on the next following Interest Payment Date unless the Revolving
Credit Note is paid in full, in which event accrued interest thereon shall
become due and payable on the repayment date.
11
(g) MANDATORY REPAYMENTS. The Borrower shall repay in full the
Revolving Credit Note, prior to making any principal payments on its Term
Note or redeeming, repurchasing or otherwise reducing the aggregate
liquidation preference of its Capital Preferred Stock. However, in the
event of any such repayment or repurchase, up to Five Million and 00/100
Dollars ($5,000,000.00) may be borrowed under the Revolving Credit Note
provided such amount is repaid within ten (10) BUSINESS DAYS.
2.4 COMMITMENT FEE. The Borrower agrees to pay to the Lender, as
compensation for its Commitment, a commitment fee based on the daily average
amount of the Commitment of the Lender against which Revolving Credit Loans are
not outstanding (the "Unused Commitment") for the period beginning January 1,
1996 and ending December 31, 1997, or on the sooner termination in full of the
Commitment, payable on each Interest Payment Date or, if the Commitment is fully
terminated, on the date of such termination. The amount of the commitment fee
payable to the Lender shall be equal to product derived by multiplying the
Unused Commitment by the Applicable Percentage.
2.5 ADDITIONAL AMOUNTS. In connection with each Revolving Credit Loan
made by Lender hereunder, Borrower shall from time to time upon the written
request of Lender pay Lender such additional amounts as shall be sufficient to
compensate Lender for all fees, assessments and costs of borrowing incurred by
Lender relating directly to such Revolving Credit Loan. All amounts payable
pursuant to this Section 2.5 shall be based upon Lender's reasonable allocation
of the aggregate of such costs and shall be set forth in reasonable detail in
the written request for payment, which written request shall be prima facie
evidence, absent manifest error, as to the amount thereof.
2A.(1) ADVANCES. Upon the terms and subject to the conditions of
this Agreement, the Lender agrees to make to the Borrower as provided for in
this Section 2A Eurodollar Rate Advances. Each Eurodollar Rate Advance will be
treated as a Revolving Credit Loan and, therefore, included in the Borrower's
aggregate Revolving Credit Commitment made by the Lender to the Borrower under
the Loan Agreement. Each advance shall be in increments of Fifty Thousand and
00/100 Dollars ($50,000.00) or in integral multiples thereof. However, the
Borrower may have no more than five (5) advances outstanding simultaneously.
(2) MAKING THE ADVANCE. Each advance shall be made on notice, given
not later than 10:30 a.m. New York City time on the third Business Day prior to
the date of the proposed advance. Each notice of an advance shall be by
telephone, telex, telecopier or cable confirmed immediately in writing in
substantially the form of Exhibit 2A hereto, specifying therein the requested
(i) date of such advance, (ii) aggregate amount of such advance, and (iii) the
interest period for each such advance (i.e., the period commencing on the date
of the advance and ending on the last day of a thirty (30) day period). Each
notice of advance shall be irrevocable and binding on the Borrower.
(3) INTEREST. The Borrower shall pay interest on the unpaid principal
amount of each advance owed to the Lender from the date of such Advance until
such principal amount shall be paid in full, at the Eurodollar Rate.
12
(4) PAYMENT. The Borrower shall repay any outstanding Eurodollar Rate
Advance in full on the last Business Day of the corresponding thirty (30) day
period. However, Borrower may not prepay any Eurodollar Rate Advance prior to
the end of this interest period.
SECTION 3. TERM LOANS
3.1 TERM LOANS. Upon the terms and subject to the conditions of this
Agreement, the Lender agrees to make a Term Loan to the Borrower as of the date
of this Agreement and thereafter, in Lender's complete discretion, such
additional Term Loans in increments of not less than One Million and 00/100
Dollars ($1,000,000.00) on such terms and conditions as Lender may determine
upon the request of Borrower (individually a "Term Loan" and collectively the
"Term Loans"). The initial Term Loan shall be in the principal amount of $0.00
(the "Initial Term Loan"). To the extent that any capital Preferred Stock has
been repurchased by Borrower, or its parent company or Subsidiaries the amount
so repurchased will be available for borrowing and included in the available
Term Loan Capacity and in the event of such repurchase, up to Five Million and
00/100 Dollars ($5,000,000.00) may be borrowed under, the Revolving Note
provided such amount is repaid within ten (10) business days. The Term Loans
made after the date hereof, if any, shall be in such principal amounts as
determined by the Lender (the Additional Term Loans).
3.2 TERM NOTE. The obligation of the Borrower to repay the aggregate
unpaid principal amount of each Term Loan shall be evidenced by a properly
executed Term Note (individually a "Term Note" and collectively the "Term
Notes") in the form of Exhibit B attached hereto and incorporated herein by this
reference. The terms of the Term Notes evidencing Additional Term Loans shall
be those terms as are specifically set forth therein. The Term Note evidencing
the Initial Term Loan shall have the following terms:
(a) AMOUNT. The Term Note shall be in the amount of the Initial Term
Loan and shall be payable to the order of the Lender.
(b) TERM. The Term Note shall be dated as of the date of this
Agreement and the unpaid balance thereon shall be due and payable on
November 30, 1999.
(c) INTEREST RATE. The Term Note shall bear interest (computed on the
basis of the actual number of days elapsed over a Business Year) on the
unpaid principal balance thereof at a fixed rate per annum.
(d) INTEREST PAYMENT DATE. Interest on the Term Note shall be payable
in arrears on each Interest Payment Date commencing January 1, 1996.
3.3 PREPAYMENTS OF TERM NOTES. The Term Notes may be prepaid, at the
Borrower's option, in whole or in part on the first business day of each April
and October, without premium or penalty, in principal amounts of One Million and
00/100 Dollars ($1,000,000.00) or in additional amounts which are even multiples
of One Hundred Thousand
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and 00/100 Dollars ($100,000.00), by giving written, telegraphic or oral notice
to the Lender not later than thirty (30) days prior to the date on which such
prepayment is to be made provided that no prepayment may be made under the Term
Note so long as a balance remains outstanding under the Revolving Credit Note.
However, in the event of such repayment, up to Five Million and 00/100 Dollars
($5,000,000.00) may be borrowed under the Revolving Note provided such amount is
repaid within ten (10) business days. When such notice of prepayment has been
given to the Lender, the applicable principal amount of the Term Notes together
with accrued interest thereon to the date of prepayment shall become due and
payable on the designated prepayment date.
3.4 ADDITIONAL AMOUNTS. In connection with each Term Loan made by
Lender hereunder, Borrower shall from time to time upon the written request of
Lender pay Lender such additional amounts as shall be sufficient to compensate
Lender for all fees, assessments and costs of borrowing incurred by Lender
relating directly to such Term Loan. All amounts payable pursuant to this
Section 3.4 shall be based upon Lender's reasonable allocation of the aggregate
of such costs and shall be set forth in reasonable detail in the written request
for payment, which written request shall be prima facie evidence, absent
manifest error, as to the amount thereof.
SECTION 4. CONDITIONS OF BORROWING
4.1 CONDITIONS PRECEDENT TO THE INITIAL LOANS. Unless waived by
Lender in its sole discretion, the obligation of the Lender to make the initial
Revolving Credit Loan and the Initial Term Loan is subject to the fulfillment,
in a manner satisfactory to the Lender and counsel for the Lender, of each of
the following conditions precedent. The Lender shall have received on or before
the day of the disbursement of the proceeds of the initial Revolving Credit Loan
and the Initial Term Loan in form and substance satisfactory to the Lender and
counsel for the Lender:
(a) REVOLVING CREDIT NOTE AND TERM NOTE. The duly executed Revolving
Credit Note and Term Note in the forms attached as Exhibits A and B to this
Agreement, respectively.
(b) RESOLUTIONS OF BOARD. Certified copies of the resolutions of the
board of directors of the Borrower authorizing the execution of this
Agreement, the Revolving Credit Note and the Term Note and all other
documents, instruments and certificates contemplated herein.
(c) SECRETARY'S CERTIFICATE. A signed copy of a certificate of the
Secretary or an Assistant Secretary of the Borrower (which shall be dated
as of the date of this Agreement) which shall certify the names of the
officers of the Borrower authorized to sign this Agreement, the Notes and
the other documents or certificates to be delivered pursuant to this
Agreement together with the true signatures of such officers.
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4.2 CONDITIONS PRECEDENT TO EACH LOAN. The obligation of the Lender
to make the Initial Term Loan, any Revolving Credit Loan and any Additional Term
Loan pursuant to this Agreement shall be subject to the following additional
conditions precedent; namely, that on the date of such loan the following
statements shall be correct and the request for a loan shall constitute a
representation and warranty that such statements are true and correct:
(a) The representations and warranties contained in Section 5 of this
Agreement are correct as of such date as though made on and as of such
date.
(b) No Default or Event of Default has occurred and is continuing or
would result from such Initial Term Loan, Revolving Credit Loan or any
Additional Term Loan.
SECTION 5. WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of this
Agreement, the Notes and each other Loan Document to which it is a party,
and the consummation of the transactions contemplated hereby or thereby are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Borrower's
charter or bylaws, (ii) violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, the consequences of
which would be likely to have a Material Adverse Effect, (iii) conflict
with or result in the breach of, or constitute a default under, any loan
agreement, indenture, mortgage, deed of trust, lease or other instrument in
each case involving Debt obligations of the Borrower AND/OR its parent
company and its Subsidiaries of One Million and 00/100 Dollars
($1,000,000.00) or more or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of the
Borrower AND/OR its parent company and its Subsidiaries, other than Liens
permitted by Section 6.2 or Liens arising under the Loan Documents. None
of the Borrower AND/OR its parent company or its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which would be likely to have
a Material Adverse Effect.
(b) This Agreement has been, and each of the Notes and each other Loan
Document when delivered hereunder will have been, duly executed and
delivered by the Borrower. This Agreement is, and each of the Notes and
each other Loan Document when delivered hereunder will be, the legal, valid
and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms except as enforceability
15
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or limiting creditors' rights or by equitable
principles generally.
(c) There is no action, suit, investigation, litigation or proceeding
affecting the Borrower, its parent company or any of its Subsidiaries
pending or, to the best of its knowledge, threatened before any court,
governmental agency or arbitrator that would be likely to have a Material
Adverse Effect or (ii) would be likely to materially adversely affect the
legality, validity or enforceability of this Agreement and the other Loan
Documents (taken as a whole) or the consummation of the transactions
contemplated hereby.
(d) The Borrower, the parent company and each of its Subsidiaries are
in material compliance with all material laws and regulations relating to
pollution and environmental control or employee safety in all domestic
jurisdictions in which the Borrower, its parent company and its
Subsidiaries are presently doing business, other than those the
non-compliance with which would not be likely to have a Material Adverse
Effect.
SECTION 6. COVENANTS OF THE BORROWER
6.1 AFFIRMATIVE COVENANTS. So long as any Revolving Credit Loans or
Term Loans shall remain unpaid, or the Lender shall have any Commitment
hereunder, the Borrower will cause to or will, unless the Lender shall otherwise
consent in writing:
(a) COMPLIANCE WITH LAWS, ETC. Pay and discharge, and cause its
parent company and each of its Subsidiaries to comply with all applicable
laws, rules, regulations and orders, except to the extent the failure to do
so would not be likely to have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause ITS PARENT
COMPANY AND each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental charges
or levies imposed upon it or upon its property which would by law become a
Lien (other than a Permitted Lien) upon its property; provided, however,
that neither the Borrower, its parent company, NOR any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by appropriate proceedings
for which appropriate reserves have been established in accordance with
GAAP.
(c) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause each of its
PARENT COMPANY AND ITS Subsidiaries to comply, with all material laws and
regulations relating to pollution and environmental control or employee
safety which may be imposed in the future in jurisdictions in which the
Borrower, its parent company or any of its Subsidiaries may then be doing
business, other than those the noncompliance with which
16
would not be likely to have a Material Adverse Effect; and if required to
do so under any applicable Environmental Law, undertake, and cause each of
its Subsidiaries to undertake, any cleanup, removal, remedial or other
action necessary to remove and clean up any Hazardous Materials from any
Real Property in accordance with the requirements of all such applicable
Environmental Laws and in accordance with orders and directives of all
governmental authorities; provided that neither the Borrower, its parent
company nor any of its Subsidiaries shall be required to take any such
action where the failure to do so would not have a Material Adverse Effect.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause its parent company
and each of its Material Subsidiaries to maintain, insurance with reputable
insurance companies or associations in such amounts, with such retention
and deductibles, and covering such risks as are in accordance with normal
industry practice.
(e) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause ITS PARENT COMPANY AND each of its Material Subsidiaries to
preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises except to the extent that the failure to do so
would not be likely to have a Material Adverse Effect; provided, however,
that the Borrower, its parent company and its Subsidiaries may consummate
any transaction permitted under Section 6.2 (e); and provided further that
neither the Borrower, its parent company or any of its Subsidiaries shall
be required to preserve any right or franchise if the Board of Directors of
the Borrower, its parent company or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower, its parent company or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, its parent company, such Subsidiary or
the Lender.
(f) VISITATION RIGHTS. At any reasonable time and upon prior notice,
permit the Lender or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower, its parent company and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower, its parent company and any of its Subsidiaries with any of their
officers or, if reasonably requested by the Lender through the officers of
the Borrower, its parent company or such Subsidiary and with their
independent certified public accountants.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause
its parent company and each of its Subsidiaries to maintain and preserve,
all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted, and do, or cause to be done, all things necessary to preserve and
keep in full force and effect its material licenses, permits, copyrights,
patents, trademarks, service marks, trade names and rights with respect
thereto, except in
17
each case to the extent that the failure to do so would not be likely to
have a Material Adverse Effect.
6.2 NEGATIVE COVENANTS. So long as any Revolving Credit Loans or Term
Loans shall remain unpaid, or the Lender shall have any Commitment hereunder,
the Borrower (and with respect only to (a)(ii), (b)(ii) and (c) herein any
Restricted Subsidiary) will not (or will cause to not), at any time, without the
written consent of the Lender:
(a) LIENS, ETC. (i) Create, incur, assume or suffer to exist, or
permit its parent company and any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its
properties of any character whether now owned or hereafter acquired other
than:
(A) Permitted Liens;
(B) Liens securing Indebtedness permitted by Sections 6.2 (b) (F),
(G) and (H);
(C) the replacement, extension or renewal of any Lien permitted by
clauses (A) and (B) above upon or in the same property theretofore subject
thereto or the replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the indebtedness
secured thereby; or
(D) [Intentionally Deleted.]
(ii) Incur any mortgage, security interest, pledge or lien
("Mortgage") upon any Principal Property, or shares of capital stock or
evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by the Borrower, its parent company or any Restricted
Subsidiary other than: (a) Mortgages on any Principal Property existing at
the time of the acquisition thereof or arising at the time of acquisition,
construction or improvement, or within one hundred twenty (120) days
thereafter, to secure the purchase price thereof or to secure the cost of
construction or improvement of such Principal Property provided that in the
case of construction or improvement the Mortgage shall not apply to any
property theretofore owned by the Borrower, its parent company or any
Restricted Subsidiary except substantially unimproved real property on
which the property so constructed or the improvement is located; (b)
Mortgages on property of a corporation existing at the time such
corporation is merged or consolidated with the Borrower, its parent company
or a Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of such corporation (or a division thereof)
substantially as an entirety to the Borrower or a Restricted Subsidiary;
(c) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary; (d) Mortgages securing
indebtedness of Borrower's parent company or a Restricted Subsidiary to the
Borrower; (e) Mortgages in favor of the United States of America or any
State thereof, or any department, agency,
18
instrumentality or political subdivision of any such jurisdiction to secure
partial, progress, advance or other payments pursuant to any contract or
statute or to secure indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of constructing or improving
the property subject to such Mortgages; (f) Mortgages representing the
extension, renewal or replacement of Mortgages existing on the date of the
Mortgages referred to in the foregoing clauses (a) through (e); and (g)
Mortgages imposed by law and similar Mortgages.
(b) INDEBTEDNESS. (i) Create, incur, assume or suffer to exist, or
permit its parent company or any of its Subsidiaries to create, incur,
assume or suffer to exist, any Indebtedness other than:
(A) Indebtedness arising under the Loan Documents;
(B) Unless Lender's Treasurer approves such other amount in
writing: (i) up to One Million and 00/100 Dollars ($1,000,000.00) of
trade letters of credit maturing by their terms, but in any event,
within one year from the dates incurred; and (ii) up to Ten Million
and 00/100 Dollars ($10,000,000.00) of Indebtedness in respect of
acceptances, warehouse receipts or similar facilities, (all maturing
by their terms, but in any event, one year from the dates incurred)
and entered into in the ordinary course of business;
(C) Guaranties in respect of Indebtedness under (E) to the extent
the Indebtedness is short term and incurred in the ordinary course of
business;
(D) Guaranties in the ordinary course of business in respect of
obligations of suppliers, customers, franchisees and licensees of the
Borrower and its Subsidiaries in an amount not to exceed the amount which
Borrower would otherwise be able to incur for such obligations in its own
right;
(E) Third Party Indebtedness of the Borrower's parent company or
its Subsidiaries organized outside the United States in an aggregate
principal amount not exceeding at any time Thirty Million and 00/100
Dollars ($30,000,000.00), unless the Treasurer or Assistant Treasurer of
Lender approves such other amount in writing;
(F) Indebtedness arising under Capitalized Leases incurred in
respect of capital expenditures permitted by Section 6.4 (c);
(G) Indebtedness of the Borrower AND/OR its parent company owed
to any of its Subsidiaries or any Indebtedness of the Borrower's
Subsidiaries AND/OR its parent company owed to the Borrower;
(H) [INTENTIONALLY DELETED.]
19
(I) any renewal or extension of the foregoing Indebtedness in an
amount not exceeding the amount outstanding at the time of such renewal or
extension;
(J) the Existing Indebtedness, and any Indebtedness extending the
maturity or refunding, in whole or in part, of any Existing Indebtedness,
provided that the terms of any such extending or refunding of the
Indebtedness, and of any agreement entered into and of any instrument
issued in connection therewith, are otherwise permitted by the Loan
Documents and certain covenants that are no more onerous than the stricter
of those covenants of this Agreement (taken as a whole) or those covenants
applicable to such Existing Indebtedness on the date hereof and further
provided that the principal amount of such Existing Indebtedness shall not
be increased above the principal amount thereof outstanding immediately
prior to such extension or refunding (including additional Indebtedness to
the extent necessary to finance the payment of premiums, make-wholes or
similar payments incurred in connection with such extension or refunding),
and the direct and contingent obligors therefor shall not be changed, as a
result of or in connection with such extension or refunding, and;
(K) Indebtedness WHICH IS SHORT-TERM OR LESS THAN ONE YEAR (up to
an amount of One Million and 00/100 Dollars {$1,000,000.00}, unless
Lender's Treasurer approves such other amount in writing) incurred in the
ordinary course of business in respect of general obligations.
(ii) Issue, ASSUME, GUARANTEE, OR PERMIT ITS PARENT COMPANY
OR ANY OF ITS SUBSIDIARIES to issue assume or guarantee any indebtedness
for borrowed money other than (a) [INTENTIONALLY DELETED], (b) indebtedness
to a Restricted Subsidiary, (c) indebtedness of a corporation existing at
the time such corporation becomes a Restricted Subsidiary or is merged with
or into or consolidated with a Restricted Subsidiary or existing at the
time of a sale or transfer of all or substantially all of the properties of
such corporation to a Restricted Subsidiary and indebtedness incurred to
extend, renew or replace indebtedness of the kind referred to in this
clause outstanding at the time of such extension, renewal or replacement
and (d) [INTENTIONALLY DELETED].
(c) SALE AND LEASEBACK. Enter (or permit ITS parent company or ANY OF
ITS Subsidiaries to ENTER) into any sale and leaseback transactions of any
Principal Property (except for transactions involving temporary leases for
a term of three (3) years or less--but up to five (5) years with the
consent of the Lender and in any event, Borrower shall give Lender
forty-five (45) days prior written notice of any proposed transaction.
(d) HEDGE AGREEMENTS. Enter (or allow its parent company or ANY OF
ITS Subsidiaries to enter) into any Hedge Agreements exceeding at any one
time an aggregate amount of Five Million Dollars ($5,000,000.00) without
the specific written approval of the Treasurer or Assistant Treasurer of
Lender (excluding commodity agreements).
20
(e) CHANGE OF CAPITAL STOCK OWNERSHIP/MERGERS, ETC. Permit any change
in the capital stock ownership or merge into or consolidate with any Person
or permit any Person to merge into it, or permit its parent company or any
of its Subsidiaries to do so, except that (i) any Subsidiary of the
Borrower may merge into or consolidate with, or transfer all or a portion
of its assets to, any other Subsidiary of the Borrower and any Subsidiary
or Affiliate of the Lender, provided that, in the case of any such
consolidation, the Person formed by such consolidation shall be a
Subsidiary of the Borrower, (ii) any of the Borrower's Subsidiaries may
merge into the Borrower if the Borrower is the surviving corporation and
(iii) the Borrower may merge into a wholly owned Subsidiary of the Borrower
that (A) is incorporated under the laws of any of the States of Delaware,
New York or Ohio and (B) has no material assets or liabilities, for the
sole purpose of changing the state of incorporation of the Borrower if the
surviving corporation shall expressly assume the liabilities of the
Borrower under the Loan Documents; provided, however, that in each case,
immediately after giving effect thereto, no event shall occur and be
continuing that constitutes a Default.
(f) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise dispose
or permit its parent company or any of its Subsidiaries to sell, lease,
transfer or otherwise dispose of any assets or Principal Properties of the
Borrower, its parent company and its Subsidiaries (except equipment and
personal property sold, leased, transferred or otherwise disposed of in the
ordinary course of business) without Lender's consent and for less than
Fair Market Value, except in a transaction authorized above by subsection
(e) of this Section; provided, however, that with respect to any sale,
lease, transfer or other disposition of any assets, immediately after
giving effect thereto, no event shall occur and be continuing that
constitutes an Event of Default under Sections 7.1 (a), (b), (c) or (f).
(g) DIVIDENDS, ETC. Declare or pay any or permit its parent company
or any of its Subsidiaries to declare or pay dividends from foreign
Subsidiaries without the prior approval of Lender's tax department; issue
or permit its parent company or any of its Subsidiaries to issue any
capital stock or, any options or warrants of capital stock; purchase,
redeem, retire, defease or otherwise acquire or permit its parent company
or any of its Subsidiaries to purchase, redeem, retire, defease or
otherwise acquire for value any Preferred Stock so long as there remains a
balance outstanding under the Revolving Credit Note.
(h) CHANGE IN NATURE OF BUSINESS. Make any material change OR PERMIT
ITS PARENT COMPANY OR ANY OF ITS SUBSIDIARIES TO MAKE ANY MATERIAL CHANGE
in the nature of its business taken as a whole as carried on at the date of
the Credit Agreement, other than as a result of (i) dispositions of assets
or businesses approved by the Board of Directors of the Borrower or (ii)
business activities engaged in by the Borrower, its parent company or its
Subsidiaries on or prior to such date and other similar or related
activities.
21
(i) ACCOUNTING CHANGES. Make or permit, or permit its parent company
or any of its Material Subsidiaries to make or permit, any change in its
fiscal year any significant change in accounting polices or reporting
practices, except as required or permitted by generally accepted accounting
principles.
6.3 REPORTING REQUIREMENTS. So long as any Revolving Credit Loans or
Term Loans shall remain unpaid, or Lender shall have any Commitment hereunder,
the Borrower will or will cause, unless the Lender shall otherwise consent in
writing, furnish to the Lender:
(a) DEFAULT NOTICE. As soon as possible and in any event within three
Business Days after any officer of the Borrower obtains knowledge of each
Default continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details thereof and the
action that the Borrower has taken and proposes to take with respect
thereto.
(b) QUARTERLY FINANCIALS. As soon as available and in any event
within twenty (20) days after the end of each of the first three (3) fiscal
quarters of each fiscal year of the Borrower, a Consolidated balance sheet
of the Borrower, its parent company and its Subsidiaries as of the end of
such quarter and Consolidated statements of income and cash flows of the
Borrower, its parent company and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end of such
quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding fiscal year,
certified (subject to year-end audit adjustments) by the chief financial
officer of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that, to the
knowledge of such officer, no Default has occurred and is continuing or, if
a Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto and (ii) a schedule setting forth in reasonable detail
the computations used by the Borrower in determining compliance with the
covenants contained in Section 6.4.
(c) ANNUAL FINANCIALS. As soon as available and in any event within
forty-five (45) days after the end of each fiscal year of the Borrower, a
copy of the annual financial report (audited, if otherwise required by
Lender) for such year for the Borrower, its parent company and its
Subsidiaries, including therein a Consolidated balance sheet of the
Borrower, its parent company and its Subsidiaries as of the end of such
fiscal year and Consolidated statements of income and cash flows of the
Borrower, its parent company and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion, acceptable to the Lender, of Deloitte
& Touche or other independent public accountants of recognized standing,
acceptable to Lender together with (i) a certificate of such accounting
firm (if required) to the Lender stating that in the course of the regular
audit of the business of the Borrower, its parent company and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing
22
standards, such accounting firm has obtained no knowledge that a Default
has occurred and is continuing, or if, in the opinion of such accounting
firm, a Default has occurred and is continuing, a statement as to the
nature thereof (provided that in no event shall such accountants be liable
as a result of this Agreement by reason of any failure to obtain knowledge
of any Default that would not be disclosed in the course of their audit
examination); (ii) a schedule setting forth in reasonable detail the
computations used by such accountants in determining, as of the end of such
fiscal year, compliance with the covenants contained in Section 6.4 (if
required), and; (iii) a certificate of the chief financial officer of the
Borrower stating that, to the knowledge of such officer, no Default has
occurred and is continuing or, if a Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has
taken and proposes to take with respect thereto.
(d) BUDGETS. Not more than thirty (30) days after the commencement
of each fiscal year of the Borrower, budgets of the Borrower, its parent
company and its Subsidiaries on a Consolidated Basis in reasonable detail
for each of the four fiscal quarters of such fiscal year as customarily
prepared by Lender's management for its internal use setting forth, with
appropriate discussion, the principal assumptions upon which such budgets
are based.
(e) CASH FLOW FORECASTS. Not more than three (3) business days after
a request from the Lender and in any event five (5) days prior to the start
of each fiscal quarter, cash flow forecasts of Borrower and its parent
company and its Subsidiaries in reasonable detail as customarily provided
by management for its internal use.
(f) LITIGATION. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting the Borrower, its parent
company or any of its Subsidiaries which the Borrower reasonably believes
would be likely to have a Material Adverse Effect.
(g) ENVIRONMENTAL MATTERS. Promptly after obtaining knowledge of any
of the following environmental matters, unless such environmental matters
would not, individually or when aggregated with all other such matters, be
likely to have a Material Adverse Effect, written notice of (i) any pending
or threatened material Environmental Claim against the Borrower, its parent
company or any of its Subsidiaries or any Real Property; (ii) any condition
or occurrence on any Real Property that (x) results in material
noncompliance by the Borrower, its parent company or any of its
Subsidiaries with any applicable Environmental Law or (y) would be likely
to form the basis of a material Environmental Claim against the Borrower,
its parent company of any of its Subsidiaries or any Real Property; (iii)
any condition or occurrence on any material Real Property that could
reasonably be anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Real Property
23
under any Environmental Law; and (iv) the taking of any material removal or
remedial action in response to the actual or alleged presence of any
Hazardous Material on any Real Property. All such notices shall describe
in reasonable detail the nature of the claim, investigation, condition,
occurrence or removal or remedial action and the Borrower's response
thereto.
(h) OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, its parent company or any of its
Subsidiaries as the Lender may from time to time reasonably request
(including forty-five (45) days prior written notice of any proposed
sale/leaseback transaction).
6.4 FINANCIAL COVENANTS. So long as any Revolving Credit Loans or
Term Loans shall remain unpaid, or Lender shall have any Commitment hereunder,
the Borrower will cause to, unless the Lender otherwise consents in writing:
(a) EBITDA/CONSOLIDATED NET INTEREST EXPENSE AND/OR SENIOR AND JUNIOR
PREFERRED STOCK DIVIDENDS. Maintain a ratio of EBITDA to Consolidated Net
Interest Expense and Senior AND/OR Junior Preferred Dividends of not less
than the amount set forth below for each period of four consecutive fiscal
quarters ended at the dates set forth below:
QUARTER ENDING RATIO
September 30, 1997 1.60:1.00
December 31, 1997 1.60:1.00
March 31, 1998 1.60:1.00
June 30, 1998 1.60:1.00
September 30, 1998 1.60:1.00
December 31, 1998 1.60:1.00
March 31, 1999 1.60:1.00
June 30, 1999 1.67:1.00
September 30, 1999 1.74:1.00
December 31, 1999 1.81:1.00
(b) CONSOLIDATED NET DEBT OR SENIOR AND JUNIOR PREFERRED STOCK AND/OR
ALL DEBT/EBITDA RATIO. Maintain a ratio of Consolidated Net Debt and
Senior and Junior Preferred Stock and/or All Debt/ EBITDA of not more than
the amount set forth below for each period of four consecutive fiscal
quarters ended at the dates set forth below:
QUARTER ENDING RATIO
September 30, 1997 7.42:1.00
December 31, 1997 7.42:1.00
24
March 31, 1998 7.11:1.00
June 30, 1998 6.81:1.00
September 30, 1998 6.49:1.00
December 31, 1998 6.19:1.00
March 31, 1999 5.97:1.00
June 30, 1999 5.76:1.00
September 30, 1999 5.54:1.00
December 31, 1999 5.32:1.00
(c) CAPITAL EXPENDITURES. Not make, nor permit its parent company or
any of its Subsidiaries to make, any Capital Expenditures that would cause
the aggregate of all such Capital Expenditures made by the Borrower, its
parent company and its Subsidiaries to exceed One Hundred Twenty-Five
Million and 00/100 Dollars ($125,000,000.00) for the fiscal year ended
December 31, 1996 and thereafter in any fiscal year to exceed the amount as
approved by the Board of Directors of Lender provided that Capital
Expenditures shall not include any portion of any acquisition unless
Borrower elects to include any portion thereof in Capital Expenditures.
SECTION 7. EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Revolving Credit Loan or Term Loan, or the Borrower shall fail to pay any
interest or other amount due under any Loan Document and such failure shall
continue for three or more Business Days; or
(b) any representation or warranty made by the Borrower under or in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Sections 6.1 (e), 6.2 or 6.4; or
(d) the Borrower shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for thirty (30) days after
written notice thereof shall have been received by the Borrower from the
Lender; or
(e) the Borrower, its parent company or any of its Subsidiaries shall
default in any payment with respect to any Indebtedness of the Borrower,
its parent company and
25
its Subsidiaries, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness; or any other event shall occur or condition shall exist under
any agreement or instrument relating to any such Indebtedness and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or otherwise to cause, or to permit the holder thereof to
cause, such Indebtedness to mature; or any such Indebtedness shall be
declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or
(f) the Borrower, its parent company or any of its Material
Subsidiaries shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower, its parent company or any
of its Material Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of
a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of sixty (60) days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or the Borrower, its parent company or any of its
Material Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money (to the extent not
paid or fully covered by insurance, provided by a carrier that has
acknowledge coverage) shall be rendered against the Borrower, its parent
company nor any of its Subsidiaries and any such judgment, or order shall
not have been vacated, discharged or stayed or bonded pending appeal within
sixty (60) days from the entry thereof; or
(h) from and after the date hereof, the combination of shareholders of
the Borrower and its Affiliates on the date hereof cease to have beneficial
ownership (within
26
the meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934) directly or indirectly, of Voting
Stock (or other securities convertible into such Voting Stock) representing
one hundred percent (100%) of the combined Voting Stock of the Borrower; or
(i) (i) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412
of the Internal Revenue Code; any Plan is, shall have been or is likely to
be terminated or the subject of termination proceedings under ERISA; any
Plan shall have an Unfunded Current Liability; or the Borrower, its parent
company, any Subsidiary or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502 (i),
502 (1), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971
or 4975 of the Internal Revenue Code; and (ii) there shall result from any
such event or events referred to in clause (i) above the imposition of a
lien, the granting of a security interest, or a liability or a material
risk of incurring a liability, on the part of the Borrower, its parent
company, any of its Subsidiaries or any ERISA Affiliate, which in each case
would be likely to have a Material Adverse Effect;
then, and in any such event, the obligation of the Lender to make Revolving
Credit Loans shall terminate and the Lender may, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable and shall
bear interest at an annual rate of eighteen percent (18%) or the maximum amount
allowable by law, whereupon the Notes, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (x) the obligation of the Lender to make Revolving Credit Loans
shall automatically be terminated and (y) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, and shall bear
interest at an annual rate of eighteen percent (18%) or the maximum amount
allowable by law, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
The Lender may take whatever action at law or in equity may appear
necessary or desirable to collect the payments described in section (a) hereof
or other sums due hereunder and thereafter to become due during the term of this
Agreement or enforce performance and observance of any obligation, agreement or
covenant of Borrower under this Agreement.
27
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
8.2 NOTICES, ETC. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered, if to the Borrower, at its address at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx, 00000-0000, Attention: Chief Financial Officer or Treasurer, Fax
No. (000) 000-0000; if to the Lender at its address at 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000-0000, Attention: Cash Manager, Fax No. (000) 000-0000 or at
such other address as shall be designated by such party in a written notice to
the other parties. All such notices and communications shall, when mailed,
telegraphed, telecopied, telexed or cabled, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier, confirmed
by telex answer-back or delivered to the cable company, respectively.
8.3 NO WAIVER; REMEDIES. No failure on the part of the Lender to
exercise, and no delay in exercising any right hereunder or under any Note shall
operate as a waiver thereof; not shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
8.4 INDEMNIFICATION.
(a) The Borrower agrees to indemnify and hold harmless the Lender and
each of its Affiliates and their respective officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and
all claim, damages, losses, liabilities and expenses (including, without
limitation, reasonable and documented fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation,
litigation or proceeding arising out of, related to or in connection with
this Agreement (including, without limitation, the Notes and any of the
transactions contemplated herein or in any other Loan Document or the
actual or proposed use of the proceeds of the Revolving Credit Loans and
Term Loans) whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
28
consummated, except to the extent such claim, damage, loss liability or
expense results from such Indemnified Party's gross negligence or willful
misconduct. The Borrower also agrees not to assert any claim against the
Lender or any of its Affiliates or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or
otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or in any other Loan Document or the actual or proposed
use of the proceeds of the Revolving Credit Loans or Term Loans.
Each Indemnified Party agrees to notify the Borrower, promptly after
obtaining actual knowledge thereof, of the assertion against it or any
other Person of any claim or the commencement of any action or proceeding
relating to this Agreement (including, without limitation, the Notes and
any of the transactions contemplated herein or in any other Loan Document
or the actual or proposed use of the proceeds of the Revolving Credit Loans
or Term Loans) which such Indemnified Party considers to be a claim, action
or proceeding with respect to which it is entitled to indemnification
hereunder, but failure to so notify will not relieve the Borrower from any
liability under this Section 8.4 (a). Each Indemnified Party will be
entitled to defend any such claim, action or proceeding, and may employ or
retain counsel to represent it in, and to defend, such claim, action or
proceeding and the Borrower will pay the reasonable and documented fees and
out-of-pocket expenses of such counsel; provided, however, that Indemnified
Parties shall, to the extent practicable, choose one counsel to act on
their behalf at the Borrower's expense, which counsel, at the request of
the Borrower, shall also represent and defend the Borrower in such claim,
action or proceeding unless an Indemnified Party reasonably determines
based on an opinion of outside counsel that having common counsel would
present such counsel with a conflict of interest. In the event of such
determination, such Indemnified Party or Parties shall not be required to
share counsel and shall be entitled to full indemnification for such
counsel's fees and expenses as otherwise provided herein.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 8.4 shall survive the payment in full of the
principal and interest hereunder and under the Notes.
8.5 GOVERNING LAW. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of Ohio.
8.6 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so
29
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
8.7 WAIVER OF JURY TRIAL. The Borrower and the Lender hereby
irrevocably waive all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to any of the Loan Documents, the Revolving Credit Loan, the Term Loan
or the actions of the Lender in the negotiation, administration, performance or
enforcement thereof.
8.8 AMENDMENTS TO THE CREDIT AGREEMENT. Borrower and Lender agree
that this Agreement shall be amended if any modification is made to the Credit
Agreement which modification is specifically applicable to the Borrower and is
approved by the Lender for inclusion in this Agreement.
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
XXXXXX CHEMICAL, INC.
By: /s/ X. X. Xxxxxxx
---------------------------------
Name: X. X. Xxxxxxx
Title: Treasurer
XXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
31
$40,000,000.00 Dated: July 1, 1996
FOR VALUE RECEIVED, the undersigned, Xxxxxx Chemical, Inc., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of Xxxxxx,
Inc. (the "Lender") (as defined in the Loan Agreement referred to below) the
aggregate principal amount of the Revolving Credit Loans (as defined below)
owing to the Lender by the Borrower pursuant to the Loan Agreement (as defined
below) on December 31, 1997.
The Borrower promises to pay interest on the unpaid principal amount
of each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates, and payable at such times, as are specified in the
Loan Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Xxxxxx, Inc.. Treasury Department, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000-0000, in same day funds. Each Loan owing to the Lender by
the Borrower and the maturity thereof, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto, which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Loan Agreement dated as of July 1, 1996 (as
amended, supplemented or otherwise modified form time to time, the "Loan
Agreement") between the Borrower and the Lender. The Loan Agreement, among
other things, (i) provides for the making of loans (the "Revolving Credit
Loans") by the Lender to the Borrower from time to time in any aggregate amount
not to exceed at any time outstanding the U.S. dollar amount first
above-mentioned, the indebtedness of the Borrower resulting from each Revolving
Credit Loan being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified.
XXXXXX CHEMICAL, INC.
By: /s/ X. X. Xxxxxxx
------------------------------
Title: Treasurer
32
REVOLVING CREDIT LOANS AND PAYMENTS OF PRINCIPAL
================================================================================
AMOUNT OF AMOUNT OF UNPAID
REVOLVING PRINCIPAL PAID PRINCIPAL NOTATION
DATE CREDIT LOAN OR PREPAID BALANCE MADE BY
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33
TERM NOTE
$0.00 Dated: July 1, 1996
FOR VALUE RECEIVED, the undersigned Xxxxxx Chemical, Inc., a Delaware
corporation (the "Borrower") HEREBY PROMISES TO PAY to the order of Xxxxxx, Inc.
(the "Lender") the aggregate principal amount of the Term (as defined below)
owing to the Lender by the Borrower pursuant to the Loan Agreement (as defined
below) on November 30, 1999.
The Borrower promises to pay interest on the unpaid principal amount
of each Term Loan from the date of such Term Loan until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Loan Agreement.
Both principal and interest are payable in lawful money of the Unites
States of America to Xxxxxx, Inc., Treasury Department, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000-0000, in same day funds. Each Term Loan owing to the
Lender by the Borrower and the maturity thereof, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto, which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Loan Agreement dated as of JANUARY 1, 1996 (as
amended, supplemented or otherwise modified form time to time, the "Loan
Agreement") between the Borrower and the Lender. The Loan Agreement, among
other things, (i) provides for the making of loans (the "Term Loan") by the
Lender to the Borrower in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above-mentioned, the indebtedness of
the Borrower resulting from such Term Loan being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
XXXXXX CHEMICAL, INC.
By: /s/ X. X. Xxxxxxx
--------------------------------
Title: Treasurer
34
TERM LOAN AND PAYMENTS OF PRINCIPAL
================================================================================
AMOUNT OF UNPAID
AMOUNT OF PRINCIPAL PAID PRINCIPAL NOTATION
DATE TERM LOAN OR PREPAID BALANCE MADE BY
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35
